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SCA/13106/2009 5/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13106 of 2009
=========================================================
KANTIBHAI
RAMBHAI BHARWAD - Petitioner(s)
Versus
GUJARAT
SECONDARY & HIGHER SECODARY EDUCATION BOARD & 2 -
Respondent(s)
=========================================================
Appearance
:
MR
CHIRAG B PATEL for
Petitioner(s) : 1,
MR AD OZA for Respondent(s) : 1 - 2.
None
for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
and
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 13/01/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE K.M.THAKER)
Heard
Mr. B.S. Patel learned advocate for Mr. Chirag Patel learned advocate
for the petitioner and Mr. A.D. Oza learned advocate for the
respondents.
Rule.
The
petitioner, who is President of Parents’ Association and also
represents parents’ association of St. Xavier Higher School,
Navrangpura, Ahmedabad, has prayed for interim relief restraining
respondent nos. 2 and 3 from permitting any person, whose names, with
full details and photograph, are not reflected in the voters’ list in
accordance with the Notification dated 13th November 2009
to cast vote in the ensuing election of the respondent no.1-Board
which is a statutory Board constituted under the provision of Gujarat
Secondary Education Act, 1972.
Mr.
B.S. Patel learned advocate for the petitioner submitted that as per
the provision in the relevant regulations for election, framed by
respondent-Board, in exercise of statutory powers the constituency of
Presidents of Parents’ Association is, as per applicable regulation,
divided in three divisions viz. Division-A, Division-B and
Division-C. Mr. Patel submitted that the present petition concerns
and is restricted to, the Division-A of the said constituency
(hereinafter referred to as concerned constituency ). The
notification for holding election was published on 6th
November 2009. Another notification regarding the voters list was
published on 13th November 2009. It is claimed that there
are 3064 voters in the concerned constituency. Mr. Patel further
submitted that by notification dated 13th November 2009,
published in Government Gazette by respondent-Board, it was notified
that the voters list, with the photographs and full names of the
voters, prepared in accordance with the regulations, would be
available for verification between 13th November 2009 to
23rd November 2009 and those voters whose names appear
without photographs or the voters whose complete details with regard
to their full names and addresses are not mentioned, must get
necessary correction made/must supply their photographs and that the
names of those voters whose photographs are not made available and/or
are left incomplete in details, shall be deleted.
On
behalf of the petitioner it has been contended that, having issued
the said notification dated 13th November 2009 the
respondent-Board by administrative instructions, cannot effect any
change and/or cannot delete or modify the requirement regarding
photographs and/or complete names of the voters. It is also submitted
that in the concerned constituency there are about 507 voters whose
names have appeared without photographs or are without complete
details regarding full names/address etc., and that therefore such
voters would not be eligible and they cannot be permitted to cast
votes and their names should be deleted as per the notification dated
13th November 2009. It is also submitted that despite such
notification respondent-Board has, merely by Chairman’s decision,
decided to allow such voters to cast vote. Mr. Patel also referred to
subsequent instruction dated 14th December 2009 wherein
also the requirement of photographs and full names/address is
reiterated. It is also claimed that though the petitioner raised
objection no action has been taken and nomination papers have been
accepted.
In
reply the respondent-Board has not disputed that the regulations are
statutory in nature and the requirement for complete details of full
names and addresses with photographs was notified by the notification
dated 13th November 2009 published in the gazette. It is
also not the case of respondent-Board that the Notification dated
13th November 2009 has been duly withdrawn and modified.
The only explanation given by respondent-Board is that Chairman is
the custodian of the voters’ list, and after receipt of the voters
list from the office of DEO it was noticed that the photographs of
the voters were not available in about 25% to 30% cases and in
certain cases complete details of full names and addresses were not
mentioned, hence the Chairman took the decision that in those cases
where photographs are not available the voters may be allowed to cast
vote on production of certificate of Principal/District Education
Officer or an identity card like driving license or pan card etc. It
is not in dispute such instructions have not been issued by way of
fresh notification or by properly modifying the Notification dated
13th November 2009. The Board has opposed the petition on
the ground that at the time of preliminary voters’ list no objection
was raised. The respondent-Board has also not denied or even disputed
the assertion of the petitioner that there are as many as 507 voters’
in the list for concerned constituency whose full details and/or
photographs are not available.
In
this backdrop at this stage, it prima facie appears that, the
requirement which came to be prescribed by the notification published
in the gazette cannot be diluted or deleted merely by Chairman’s
instruction or communication i.e. by administrative order. The
notification dated 13th November 2009 clearly and
specifically declared that the names of those voters whose
photographs are not available and/or whose complete details regarding
names and address are not mentioned, will be deleted from the voters’
list. In face of such notification regarding voters’ list the said
requirement cannot be ignored or discounted on the basis of
Chairman’s instruction and without fresh Notification. If requirement
is allowed to be waived on the strength of Chairman’s instruction,
the very purpose of notifying the requirement of full names with
photographs i.e. of curbing bogus voting, will be frustrated.
It
is well settled that the Court would normally not interfere with
election once the process has commenced, however, in present case it
appears at this stage, from the above discussed facts, that this is a
fit case to grant interim relief as prayed for so as to ensure that
those voters who do not fulfill the requirement notified by the
Notification dated 13th November 2009 are not allowed to
cast their votes. Since the possible breach of the said requirement
can be arrested without disturbing and/or staying the election
process, while keeping in focus the observations of the Hon’ble Apex
Court in para 32 of the decision in Election Commission of India
vs. Ashok Kumar & others (2000) 8 SCC 216 that:-
(2)
Any decision sought and rendered will not amount to calling in
question an election if it subserves the progress of the election
and facilitates the completion of the election. Anytime done towards
completing or in furtherance of the election proceedings cannot be
described as questioning the election. (3) Subject to the above, the
action taken or orders issued by Election Commission are open to
judicial review on the well-settled parameters which enable judicial
review of decisions of statutory bodies such as on a case of mala
fide or arbitrary exercise of power being made out or the statutory
body being shown to have acted in breach of law. (4) Without
interrupting, obstructing or delaying the progress of the election
proceedings, judicial intervention is available if assistance of the
court has been sought for merely to correct or smoothen the progress
of the election proceedings, to remove the obstacles therein, or to
preserve a vital piece of evidence if the same would be lost or
destroyed or rendered irretrievable by the time the results are
declared and stage is set for invoking the jurisdiction of the
court.
We
deem fit to pass following order:-
The
interim relief as prayed for in paragraph 9(B) is granted. The
respondent nos. 2 and 3 shall not allow the voters whose names are
not reflected with complete details and photographs in the voter’s
list for the concerned Constituency.
Direct
service is permitted.
The
registry will issue writ forthwith.
(Ms.
R.M. Doshit,J.)
(K.M.Thaker,J.)
Suresh*
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